20 March 2014

Manifesting your religion can be tricky and costly

A recent decision by an employment appeals tribunal which
found that an employer had not discriminated against the claimant because of
her religion or belief is of particular interest.

In the case of Grace v Places for Children [UKEAT/0217/13/GE]
the first employment tribunal decided that the claimant had behaved
inappropriately and unprofessionally in the way she manifested her religious
beliefs.

The tribunal dismissed the claim that the claimant had been
discriminated against because of her religion. It decided that the claimant was
not dismissed from her job because of
her religion but rather because of the
way in which she manifested or shared it. Accordingly, her treatment did
not constitute direct discrimination because of her religion.

When the claimant appealed, the employment appeals tribunal
dismissed the appeal finding on the basis
of established facts that the claimant was not dismissed or treated less
favourably because of her religion. It is notable, however, that the appeals
tribunal did specifically uphold the January 2013 findings of the Strasbourg court
in the case of Eweida
and other v UK that there is no clear dividing line between holding and manifesting
a religious belief. In that landmark case, the European Court of Human Rights
was concerned to establish that a fair balance must be struck in any limiting
of an individual's right to manifest their religious beliefs. Both the
expression of beliefs as well as the beliefs themselves deserve protection.

Employers were consequently advised to take especial care in
future when balancing their needs against those of their employees in issues
concerning how an employee manifests his or her religious beliefs in the
workplace. Employers were recommended to revisit policies, such as
uniform/dress codes and to reconsider justification of practices which might
prevent employees manifesting their religious beliefs. They were further
advised to give careful consideration to requests from employees where manifestation
of religious beliefs could be affected – for example, in changes to working
hours.

In the present case, the claimant was employed as a nursery
manager at her employer's Islington Nursery. However, in November 2011 she was
summarily dismissed. The reasons stated in her dismissal letter were that:

The claimant had held an unauthorised training session
for staff members, which gave rise to complaints by some of those who attended
it.

As a result of the claimant's reaction to a pregnant
staff member's revelation of the contents of a dream to her, the staff member
had gone away extremely scared, believing she would suffer a miscarriage.

The claimant told a member of staff that something was
going to happen in the nursery which would have a massive ripple effect which
left staff members uneasy and scared.

The claimant's behaviour was deemed by her employer to have
been unprofessional, inappropriate and harassing in nature. This resulted in damage
to management's trust and confidence in the employee and she was consequently
dismissed for gross misconduct.

In response, the claimant claimed that she had been
subjected to unlawful discrimination because of a protected characteristic, her
religion, and sought compensation. She alleged that she had been told that it
was not company policy for the claimant to hold Bible sessions with individuals
who had consented to it and that it was inappropriate to conduct discussions with
other staff members about God in the workplace

The first employment tribunal found that the employer had
stated that employers were under a duty to afford a time and place for
individuals to pray but not facilitate group prayer sessions. However, they had
not stated - as the claimant claimed - that they were opposed to groups meeting
to discuss the Bible. It also found that the employers did not have a policy of
restricting the times when staff could discuss religious matters during their
break. They therefore found that there was consequently no unfavourable or
different treatment because of the claimant's religion.

The tribunal also concluded that the employer was justified
in deciding that the claimant's actions blurred the boundaries between the claimant's
work and matters which were not work-related and had an adverse effect on the
well-being of staff. The tribunal did comment on the lack of warning before
dismissal about the claimant's behaviour and the lack of an opportunity for her
to correct it, though this would only have been relevant if there had been a
valid claim for unfair dismissal.

What is of particular interest is the conclusion of the employment
tribunal, upheld by the employment appeals tribunal, which stated: "We conclude, as did the tribunal in the case of
Chondol, that the Claimant in this matter was not treated as she was because of
her religion, but rather because of the way in which she manifested or shared
it. This indeed was the Claimant's own conclusion. She agreed that she would
have been treated in the same way regardless of her particular religion or had
she had no religion at all. This cannot therefore constitute direct
discrimination because of her religion and in the circumstances the claim
fails."

The reference to Chondol was a reference to Chondol v Liverpool
CC [2009] UKEAT
0298/08/1102. Mr Chondol was a social worker and a committed Christian. He
was dismissed because, in the Employment Tribunal's words, he had 'improperly
foisted his Christian beliefs on service users'.

It is not lawful to draw a distinction in principle between
holding a religious belief and manifesting it. Article 9 of the European
Convention on Human Rights recognises both the absolute right to religious
freedom and the qualified right to manifest religion. Both rights are referred
to in paragraphs 2.50 to 2.61 of the guidance given in the Code of Practice on
Employment 2011 issued by the Equality and Human Rights Commission. An
Employment Tribunal must take into account the provisions of that code in any
case in which it appears to the Employment Tribunal to be relevant (see the
Equality Act 2010, section 15(4)). Paragraph 2.61 of the
Code states:

"There is not always a clear line between holding a
religion or belief and the manifestation of that religion or belief. Placing
limitations on a person's right to manifest their religion or belief may amount
to unlawful discrimination; this would usually amount to indirect
discrimination."

The appeals tribunal noted the very carefully worded summary
of the original tribunal: "...the Claimant in this matter was not treated as she
was because of her religion but rather because of the way in which she
manifested or shared it."

Effectively it was found that the claimant had manifested
her religion in a way which was considered to be inappropriate and which upset
members of staff. So the tribunal decided her dismissal was not for an
impermissible reason and she was not subjected to less favourable treatment for
an impermissible reason.

Of course, the decision about what is appropriate and
inappropriate may be a highly subjective one and one employer may judge
appropriateness in a completely different way than another. This seems to be an
area in which future conflict and confusion is likely and it will be important
to monitor closely future cases to check whether employers might unfairly
exploit the question of what is or is not an appropriate way in which to share
one's faith in the workplace, perhaps as a way of compensating for the overturn
in Strasbourg of the previous increasingly accepted practice to drive a wedge
between holding a religion and manifesting it. For example, is it appropriate
for an employer to insist that prayer must only be allowed for individuals
rather than for groups? Should it be merely the judgement of an employer that
staff are adversely affected by the way in which an employee manifests her
faith?

It should be noted that such employment tribunal decisions
remain highly context and fact sensitive. Cases may involve significant complexities
for employers. In this present case the facts were readily distinguishable even
though disputed. Establishing facts is clearly a crucial aspect of cases like
this where disputes about who said what are common. It appears that verbatim
quotes are important in offering evidence as opposed to, for example,
interpreting the gist of conversations. Employers and employees are well advised
to record details including witness statements as near to the event as possible
in anticipation of potential future claims. All facts in cases of a similar
nature are likely to differ from other cases so it can be difficult to draw
firm conclusions from one specific case. Each individual case will require
assessment on its own merits. What tribunals will look for are careful evidence-based
examination of the facts and the reaching of sustainable conclusions based upon
those facts.

What is also clear is that future tribunals are likely to inquire
into and take account of the extent to which manifestation of a religious
belief is carried out in an 'appropriate' or 'inappropriate' way. Raising
religious matters in a work environment is one thing, but if the ways in which
it is done could be regarded as harassing other members of staff or foisting of
religious views on unwilling recipients in a way that employers reasonably
consider might impact them adversely then tribunals are unlikely to be
sympathetic. Christians might well bear in mind the scriptural injunction to be
'wise as serpents and harmless as doves' whilst refusing to be silenced or intimidated
by hostility in their endeavours to preach the gospel in the workplace (Matthew
10:16).

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